Emelita V. Mercado, Librarian III, The National Library,
Ermita, Manila, appeals the decision dated November 5, 1999 of Director Adoracion
Mendoza-Bolos, same office, which found her guilty of Habitual Tardiness and
imposing upon her the penalty of six (6) months suspension without pay.

The Decision reads, in part, as follows:

“On October 5, 1999, Ms. Emelita V.
Mercado, Librarian III, this Office is charged of habitual tardiness for
incurring absences from January 1995 to September 1999 as many times as
indicated below:

x x x

“In her answer, she claims as
follows:

“1. That this formal charge is similar to the Moto
Propio administrative complaint dated August 25, 1997;

“2. That I answered said complaint dated 26 August
1997 which the Director did not act on it, her silence is tantamount to
accepting my explanation and because of this Director is stopped from further
continuing this case;

“3. That reviving the same constitute an endless
litigation;

x x x

“5. That there is an unwritten understanding in this
Office that for humanitarian reasons tardiness not exceeding 15 minutes will not
be counted and only those lates over 15 minutes will be considered violation of
the Civil Service Commission law;

“6. That the Director is giving this leeway to show
her compassion to her employees;

“7. That the director also emphasized that tardiness
for an hour is intentional and can not be forgiven;

x x x

“9. That considering the above-mentioned facts I am
not eligible for the charge against me.

x x x

“Having failed to elect a formal
investigation she is deemed to have waived her right thereto. Moreover, the
number of times she incurred tardiness are shown clearly by the records which
she did not refute or deny.

“That
there was a similar complaint in 1997 against the respondent is not an
impediment to charge her again for a similar offense. Besides, the former
complaint was for respondents’ habitual tardiness in April, May and June 1997,
or a period of three (3) months only, for which she was verbally warned not to
commit the same offense in the future. The instant case involves her habitual tardiness
from January 1995 to September 1999 wherein she incurred tardiness totaling
206, 170, 164, 126 and 117 each year, respectively, thereby, belying her claim
that she made ‘it a point not to commit the same violation.’

“Her
reference to ‘an unwritten understanding in this Office that for humanitarian
reasons, tardiness not exceeding 15 minutes will not be counted and only those
lates over 15 minutes will be considered violation of the Civil Service
Commission Law’ is not meritorious, because there is no such ‘unwritten
understanding’, and if at all, it cannot prevail over the explicit provision of
Sec. 23(q) of Civil Service Commission Omnibus Rules, pertinent portion of
which is quoted in the Formal Charge, and is fully quoted hereunder:

x x x

“Wherefore, Ms. Emelita Mercado is
hereby found guilty of habitual tardiness, a grave offense, and she is hereby
meted the penalty of SUSPENSION for six (6) months without pay effective upon
receipt hereof.”

The material portions of Mercado’s appeal are, as
follows:

“3. It has been the policy of the
office since the time of predecessor of Director Bolos, the then Director
Muñasque that an employee is considered late or tardy when she arrives in the
office beyond fifteen minutes of her regular time in the morning and in the
afternoon.

“3.1.
This policy has been repeatedly announced by the Director Bolos, since she
assumed the position as Director of The National Library every Monday of the
week as a reminder to the employees.

“4. With this policy of the office,
I saw to it that I would arrive not later than fifteen minutes of my regular
time as contained in the Daily Time Record from 1998-1999.

“4.1
As appearing in my Daily Time Record in 1998 to 1999 the number of my tardiness
are hereunder itemized in the observance to the fifteen minutes grace period.

x x x

“WHEREFORE, premises considered, it
is most respectfully prayed unto the Honorable Commission to reverse and set
aside the decision of Director Bolos and to immediately reinstate the herein
appellant to her position.”

When required to
comment on the appeal, Director Mendoza-Bolos stated that:

“4. With respect to Ms. Mercado’s
allegations in par. 4 and her enumerations in par. 4.1 of the number of times
she was tardy for the years 1997 to 1999, the same cannot be favorably
considered as a defense to warrant her exoneration. Firstly, the charge against
her is not only for her tardiness in 1997 to 1999 but from January, 1995 to
September, 1999 where she incurred an aggregate of 206, 170, 164, 126 and 116
number of times of tardiness each year, respectively. It will please be noted
from the tabulation in the subject appealed DECISION that the number of times
of her tardiness in 1995 ranged from 12 to 20 times each month; from 7 to 22 in
1996; from 6 to 21 in 1997; from 5 to 16 in 1998 and from 7 to 15 times in
1999, or an average of 16, 14.5, 10.5 and 11 times tardy each month of the
year. Secondly, granting arguendo the number of her tardiness she reflected in
par. 4.1 of her Memorandum wherein she only counted her tardiness exceeding 15
minutes, as correct, still she exceeded twice in 1999 the ‘ten times a month
tardiness’ provided in Sec. 23(q) of the CSC Omnibus Rules; three times in 1998
and again three times in 1997. Thirdly, the aforesaid CSC Omnibus Rules is
quite emphatic thus: Any employee shall be considered habitually tardy if he
incurs tardiness, REGARDLESS OF THE NUMBER OF MINUTES, ten (10) times a month x
x x’

x x x

“It is the humble submission of this
Office that the appeal of Ms. Mercado is bereft of merit and that the subject
decision is duly supported by substantial evidence and is in accordance with
the law and the rules.”

Additionally, Director Mendoza-Bolos argued that the
appeal was filed out of time and that Mercado has not made any assignment of
errors in her appeal.

Records
show that on October 5, 1999, Director Adoracion Mendoza-Bolos of The National
Library, Ermita, Manila, issued a Formal Charge against Emelita V. Mercado,
Librarian III, same office, for Habitual Tardiness. In the Formal Charge,
Mercado allegedly committed Habitual Tardiness, as follows:

19951996199719981999

“January-1922141015

“February-121518713

“March-191815414

“April-161615715

“May-2018141112

“June-1813161015

“July-18721511

“August-20106158

“September-151281214

“October-17101116-

“November-12141615-

“December-20151014-

Mercado
submitted her Affidavit-Answer dated October 15, 1999. Obviously not satisfied
with Mercado’s answer, Director Mendoza-Bolos issued the assailed decision on
November 5, 1999. Mercado’s Motion for Reconsideration was denied in a
Resolution dated November 11, 1999.

“Any
employee shall be considered habitually tardy if he incurs tardiness,
regardless of the number of minutes, ten (10) times a month for at least two
(2) months in a semester or at least two (2) consecutive months during the
year.”

The above-quoted provision is clear. Habitual Tardiness
may be committed in two (2) ways, viz.:

1.When the employee incurs tardiness ten (10) times a month
for at least two (2) months in a semester;

2.When the employee incurs
tardiness of ten (10) times for two (2) consecutive months during the year.

In both instances, the
number of minutes of tardiness in not important. Thus, an employee who is late
in coming to work even for one (1) minute only is tardy. The number of tardiness committed by Mercado
is substantial evidence to prove her guilt of the offense charged. She has not
denied the number of tardiness that appeared in the Formal Charge. Her only
defense is that the National Library has a policy that gives its employees a
fifteen (15) minute grace period before being considered tardy, which the
Commission finds to be without legal basis.

Aside
from the fact that this policy was vehemently denied by Director Mendoza-Bolos,
there is also CSC Memorandum Circular
(MC) No. 5, series of 1997, which categorically provides that:

“Pursuant to CSC Resolution No. 97-0406
dated January 28, 1997, the Civil Service Commission recognizes and affirms the
authority of Heads of Departments, Agencies, Bureaus and Offices of the
National Government, Local Government and Government-Owned and Controlled
Corporations with Original Charters and State Colleges and Universities, to
promulgate their own internal rules and regulations on attendance and
punctuality which will require their employees to incur less absences and
tardiness than the frequency allowed under existing Civil Service rules and
regulations. Violations of the rules issued by heads of offices shall
constitute the offense of Violation of Reasonable Office Rules and Regulations,
punishable with reprimand on the first offense, suspension for one (1) to
thirty (30) days on the second offense, and dismissal on the third offense.”

A closer
reading of the said MC would readily show that the authority conferred to heads
of agencies is to promulgate a more strict rule on tardiness and absences which
would require their employees to incur less absences and tardiness than that
provided for under existing Civil Service Law and Rules. Heads of Agencies are
not authorized to promulgate rules which would be more lenient than that
provided under the rules. Hence, unless an office is allowed flexible working
hours by the Commission, the head of office cannot adopt a policy that would
give its employees a fifteen (15) minute grace period reckoned from the start
of the working day before they are considered as tardy.

However,
we find that Director Mendoza-Bolos committed an error with respect to the
penalty imposed on Mercado. Under Section
52(c)(4), Rule IV of the Uniform Rules on Administrative Cases in the Civil
Service, Habitual Tardiness is classified as a light offense and imposable
with the penalty of reprimand for the first offense; suspension of one (1) to
thirty (30) days for the second offense; and, dismissal for the third offense.

The provisions of the Uniform Rules, which became
effective on September 27, 1999, should have been used by Director
Mendoza-Bolos on the implementation of the proper penalty considering that it
is a procedural rule which applies to pending cases. Moreover, the schedule of
penalties provided under the Uniform Rules is a mere reiteration of that
provided under Civil Service Commission
Memorandum Circular No. 23, series of 1998.

While the formal charge may show that Mercado has
committed Habitual Tardiness many times over, she was not charged for each acts
of Habitual Tardiness. She was charged with only one count of Habitual
Tardiness committed from 1995-1999. Hence, she can only be found liable for one
count of Habitual Tardiness.

Moreover, while there is a statement in the Decision
appealed from that Mercado was previously verbally warned regarding her
Habitual Tardiness, the same cannot be considered as her first offense and the
present case subject of this appeal as the second offense so that the penalty
of one (1) to thirty (30) days suspension should be imposed. There is no
showing that Mercado was previously charged with, and found guilty of, Habitual
Tardiness. Hence, there is no first offense to speak of.

WHEREFORE, the
appeal of Emelita V. Mercado is hereby DISMISSED. However, the penalty of six
(6) months suspension without pay is modified and lowered to reprimand.